Cincinnati v. Fourth Natl. Realty, L.L.C. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cincinnati v. Fourth Natl. Realty, L.L.C., Slip Opinion No. 2020-Ohio-6802.]
NOTICE
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advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2020-OHIO-6802THE CITY OF CINCINNATI, APPELLANT, v. FOURTH NATIONAL REALTY, L.L.C.,
APPELLEE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cincinnati v. Fourth Natl. Realty, L.L.C., Slip Opinion No.
2020-Ohio-6802.]
Declaratory-judgment action—R.C. 2721.12—Failure to serve the attorney
general at the inception of the action does not divest the trial court of its
subject-matter jurisdiction—Court of appeals’ judgment affirmed and
cause remanded to the trial court.
(No. 2019-0898—Submitted August 18, 2020—Decided December 22, 2020.)
APPEAL from the Court of Appeals for Hamilton County,
Nos. C-180156 and C-180174, 2019-Ohio-1868.
_______________________
FRENCH, J.
{¶ 1} When a party seeks a declaratory judgment that a statute or municipal
ordinance is unconstitutional, R.C. 2721.12 requires the party to serve its pleading
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on the Ohio Attorney General. This case requires us to decide when the attorney
general must be served. The appellant, city of Cincinnati, argues that R.C. 2721.12
requires service on the attorney general at the inception of the case. The appellee,
Fourth National Realty, L.L.C. (“Fourth National”), did not serve its counterclaim
challenging the constitutionality of Cincinnati’s zoning ordinances until more than
two years into the litigation. According to Cincinnati, this delay in service divested
the trial court of subject-matter jurisdiction over Fourth National’s claim for
declaratory relief.
{¶ 2} We disagree. While R.C. 2721.12(A) requires a party to serve its
pleading on the attorney general before a court can rule on a claim for declaratory
relief challenging the constitutionality of a statute or ordinance, we conclude that
the failure to serve the attorney general at the inception of the action does not divest
the trial court of its subject-matter jurisdiction. We therefore affirm the judgment
of the First District Court of Appeals and remand the matter to the trial court for
proceedings on Fourth National’s constitutional challenge of Cincinnati’s
ordinance.
FACTS AND PROCEDURAL HISTORY
{¶ 3} On July 1, 2015, Cincinnati filed an action for injunctive relief against
Fourth National, seeking the removal of a billboard sign. Cincinnati alleged that
Fourth National had installed an outdoor advertising sign without obtaining the
necessary permit and variance. Fourth National answered and filed a counterclaim,
seeking a declaration that the city’s outdoor advertising prohibitions violated its
right to free speech under the First Amendment to the United States Constitution
and its right to equal protection of the law under the Fourteenth Amendment to the
United States Constitution.
{¶ 4} The parties filed competing motions for summary judgment. The trial
court granted relief to the city in part, holding that Fourth National had not satisfied
the redressability element of a constitutional challenge and thus could not challenge
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the constitutionality of the ordinance, because Fourth National was in violation of
various other city ordinances. On appeal, the First District Court of Appeals
concluded that Fourth National could challenge the constitutionality of certain of
the city’s sign-prohibition provisions on free-speech grounds and remanded the
cause to the trial court. See Cincinnati v. Fourth National Realty, L.L.C., 2017-
Ohio-1523, 88 N.E.3d 1278.
{¶ 5} On remand, the city filed a second motion for summary judgment,
arguing that the trial court did not have subject-matter jurisdiction because Fourth
National had not served the attorney general with notice of the pending
constitutional claim at the inception of Fourth National’s case in accordance with
R.C. 2721.12. Fourth National subsequently served the attorney general on January
26, 2018, almost two and a half years after first alleging constitutional violations in
its declaratory-judgment action.
{¶ 6} The attorney general chose not to file a brief or otherwise participate
in the case. The trial court concluded that it had acquired subject-matter jurisdiction
because the attorney general had ultimately been served and the city had not been
prejudiced by the delay in serving the attorney general.
{¶ 7} The parties appealed. The court of appeals affirmed in part and
reversed in part and again remanded the cause to the trial court. The court of
appeals stated that the trial court had acquired subject-matter jurisdiction over the
action when Fourth National served the attorney general. The court reasoned that
the attorney general ultimately had been served and had chosen not to participate.
{¶ 8} We accepted Cincinnati’s discretionary appeal on the following
proposition of law: “Service on the Attorney General of a [declaratory-judgment]
claim alleging an ordinance is unconstitutional must be made at the inception of the
case pursuant to R.C. 2721.12.” See 156 Ohio St.3d 1497, 2019-Ohio-3505, 130
N.E.3d 293. The Ohio Attorney General filed an amicus brief in support of neither
side.
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ANALYSIS
{¶ 9} R.C. 2721.12(A) states:
[W]hen declaratory relief is sought under this chapter in an action
or proceeding, all persons who have or claim any interest that would
be affected by the declaration shall be made parties to the action or
proceeding. * * *. In any action or proceeding that involves the
validity of a municipal ordinance or franchise, the municipal
corporation shall be made a party and shall be heard, and, if any
statute or the ordinance or franchise is alleged to be unconstitutional,
the attorney general also shall be served with a copy of the complaint
in the action or proceeding and shall be heard.
{¶ 10} With respect to the attorney general, R.C. 2721.12(A) imposes two
requirements when a declaratory-judgment action challenges the constitutionality
of a statute or ordinance. First, the attorney general “shall be served with a copy of
the complaint.” And second, the attorney general “shall be heard.” While R.C.
2721.12(A) requires the attorney general to be served a copy of the complaint (or
other initial pleading), it contains no language dictating the timing of service on the
attorney general. And there is no language in R.C. 2721.12 divesting the trial court
of its subject-matter jurisdiction if parties do not complete service on the attorney
general within a certain time. See Binder v. Cuyahoga Cty., __ Ohio St.3d. __,
2020-Ohio-5126, __ N.E.3d __, ¶ 23 (declining to find that trial court lacked
subject-matter jurisdiction in absence of language explicitly removing that
jurisdiction); Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296,
2019-Ohio-2845, 136 N.E.3d 436, ¶ 9 (same). Construing R.C. 2721.12(A) as
requiring service on the attorney general at the inception of a case would create a
temporal requirement that simply does not exist in the statute.
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{¶ 11} Cincinnati argues that in Cicco v. Stockmaster, 89 Ohio St.3d 95,
728 N.E.2d 1066 (2000), we held that R.C. 2721.12 requires service on the attorney
general at the inception of a declaratory judgment action. We inferred in Cicco that
the General Assembly must have intended to require service on the attorney general
“at the inception of the action” in order to give a reasonable amount of time to
respond. Id. at 99. But we did not create a rule in Cicco requiring service on the
attorney general “at the inception of the action.” Rather, we held in Cicco that a
party who is challenging the constitutionality of a statute must do two things for the
trial court to proceed on a claim for declaratory relief: (1) “assert the claim in the
complaint (or other initial pleading)” and (2) “serve the pleading upon the Attorney
General in accordance with methods set forth in Civ.R. 4.1.” Id. at syllabus.
Because the plaintiffs in Cicco asserted their constitutional challenge for the first
time in their motion for summary judgment and sent a copy of the motion to the
attorney general by ordinary mail, we concluded that the trial court lacked
jurisdiction over their constitutional challenge. Id. at 98, 100-101.
{¶ 12} By contrast, Fourth National satisfied both of the requirements in
R.C. 2721.12(A), as construed in Cicco: (1) Fourth National asserted its
constitutional challenge in a counterclaim, and (2) it requested the sheriff’s office
to serve the counterclaim on the attorney general, in accordance with Civ.R. 4.1.
Neither R.C. 2721.12(A) nor Cicco requires Fourth National to do anything more
to proceed with its claim for declaratory relief.
{¶ 13} Dismissal of Fourth National’s counterclaim here would also
contradict our precedent allowing parties to rectify belated service on the attorney
general or the failure to serve a necessary party to a declaratory-judgment action.
In Leisure v. State Farm Mut. Auto. Ins. Co., 89 Ohio St.3d 523, 733 N.E.2d 1117(2000), we affirmed the lower court’s judgment, which vacated rulings entered by
the trial court because the plaintiffs had not served the attorney general. But instead
of dismissing the action, we remanded the cause to the trial court to permit the
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plaintiffs to serve the attorney general. Id. at 524. In Plumbers & Steamfitters
Local Union 83 v. Union Local School Dist. Bd. of Edn., 86 Ohio St. 3d 318, 323,
715 N.E.2d 127 (1999), we allowed the party seeking a declaratory judgment to
amend its pleading to join a necessary party, even though the absence of a necessary
party constitutes a jurisdictional defect. We also held that a court abuses its
discretion by dismissing the action rather than allowing joinder of the absent party.
Id. at 323-324. When a party has failed to serve the attorney general or a necessary
party, courts should allow parties to rectify belated service rather than dismiss the
action.
CONCLUSION
{¶ 14} While R.C. 2721.12(A) requires service on the attorney general
before a court can rule on a claim for declaratory relief challenging the
constitutionality of a statute or ordinance, we conclude that the failure to serve the
attorney general at the inception of the action does not divest the trial court of its
subject-matter jurisdiction.
{¶ 15} We therefore affirm the First District’s judgment and remand the
matter to the trial court to proceed on Fourth National’s constitutional challenge of
Cincinnati’s ordinance. In accordance with Leisure, however, the trial court should
vacate any judgments involving Fourth National’s counterclaim that the court
issued before Fourth National served its counterclaim on the attorney general.
Judgment affirmed
and cause remanded.
O’CONNOR, C.J., and STEWART, J., concur.
KENNEDY, J., concurs in judgment only, with an opinion.
PIPER, J., concurs in judgment only, with an opinion.
DONNELLY, J., concurs, with an opinion.
KLATT, J., dissents, with an opinion.
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ROBIN N. PIPER III, J., of the Twelfth District Court of Appeals, sitting for
FISCHER, J.
WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for
DEWINE, J.
_________________
KENNEDY, J., concurring in judgment only.
{¶ 16} Because the failure to serve a copy of the complaint on the attorney
general in a declaratory-judgment action attacking the constitutionality of a statute
or municipal ordinance does not deprive the common pleas court of subject-matter
jurisdiction to proceed to judgment, any error in proceeding despite a lack of service
is subject to harmless-error review. The majority, however, relies too heavily on
the summary disposition of Leisure v. State Farm Mut. Auto. Ins. Co., 89 Ohio St.3d
523, 733 N.E.2d 1117 (2000), a case that was held for the decision in Cicco v.
Stockmaster, 89 Ohio St.3d 95, 728 N.E.2d 1066 (2000), to prop up its holdings
that (1) a trial court has subject-matter jurisdiction over a declaratory-judgment
action notwithstanding a claimant’s failure to serve a constitutional claim on the
attorney general and (2) any trial-court judgments on constitutional issues entered
before the attorney general receives service must be vacated. The majority never
explains why it apparently believes that those judgments on constitutional issues
are void even if the trial court does not lack subject-matter jurisdiction over the
action and even if there was no prejudice arising from those rulings.
{¶ 17} There is no need to confuse the law here. Subject-matter jurisdiction
is the power of a court to hear a particular class or type of case, and the common
pleas court is the proper forum for a declaratory-judgment action. Any error the
trial court committed in proceeding to judgment is therefore the improper exercise
of jurisdiction and, in this case, the error is harmless. Appellant, the city of
Cincinnati, waited more than two years to challenge the failure of appellee, Fourth
National Realty, L.L.C., to serve the attorney general, and once served, the attorney
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general elected not to participate. Because there has been no prejudice to the city
or the state, the failure to serve the attorney general was at most harmless error.
The city should not profit from an error that it could have raised near the outset of
this prolonged litigation, and we should neither grant the city a second opportunity
to relitigate these constitutional claims nor require the trial court to engage in the
fruitless exercise of vacating and reissuing those rulings on constitutional claims
entered prior to service on the attorney general. I therefore concur in judgment only
because although I do not agree with the majority opinion’s analysis, I agree that
the judgment of the First District Court of Appeals should be affirmed.
Jurisdiction
{¶ 18} “[J]urisdiction is a vague term, ‘ “a word of many, too many,
meanings.” ’ ” Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493,
2008-Ohio-6323, 900 N.E.2d 601, ¶ 5, quoting Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), quoting
United States v. Vanness, 85 F.3d 661, 663 (D.C.Cir.1996), fn. 2. It encompasses
“[s]everal distinct concepts, including territorial jurisdiction, monetary jurisdiction,
personal jurisdiction, and subject-matter jurisdiction,” id., as well as “jurisdiction
over a particular case,” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-
4275, 21 N.E.3d 1040, ¶ 18. “The often unspecified use of this polysemic word
can lead to confusion and has repeatedly required clarification as to which type of
‘jurisdiction’ is applicable in various legal analyses.” Id.{¶ 19} Subject-matter jurisdiction refers to the constitutional or statutory
power of a court to adjudicate a particular class or type of case. Corder v. Ohio
Edison Co., ___ Ohio St. 3d ___, 2020-Ohio-5220, ___ N.E.3d ___, ¶ 14, citing
Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12,
34. “ ‘A court’s subject-matter jurisdiction is determined without regard to the
rights of the individual parties involved in a particular case.’ ” Corder at ¶ 14,
quoting Kuchta at ¶ 19. “Instead, ‘the focus is on whether the forum itself is
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competent to hear the controversy.’ ” Id., quoting State v. Harper, ___ Ohio St.3d
___, 2020-Ohio-2913, ___ N.E.3d ___, ¶ 23; see also 18A Wright, Miller &
Cooper, Federal Practice and Procedure, Section 4428, at 6 (3d Ed.2017)
(“Jurisdictional analysis should be confined to the rules that actually allocate
judicial authority among different courts”).
{¶ 20} “A court’s jurisdiction over a particular case refers to the court’s
authority to proceed or rule on a case that is within the court’s subject-matter
jurisdiction.” Kuchta at ¶ 19. This reference to “a court’s exercise of its jurisdiction
over a particular case,” Pratts at ¶ 12, “involves consideration of the rights of the
parties,” Kuchta at ¶ 19. That is, “ ‘ “[o]nce a tribunal has jurisdiction over both
the subject matter of an action and the parties to it, ‘* * * the right to hear and
determine is perfect; and the decision of every question thereafter arising is but the
exercise of the jurisdiction thus conferred * * *.’ ” ’ ” (Ellipses added in Pizza.)
Harper at ¶ 26, quoting Pratts at ¶ 12, quoting State ex rel. Pizza v. Rayford, 62
Ohio St.3d 382, 384, 582 N.E.2d 992 (1992), quoting Sheldon’s Lessee v. Newton,
3 Ohio St. 494, 499 (1854).
Subject-Matter Jurisdiction over Declaratory-Judgment Actions
{¶ 21} Article IV, Section 4(A) of the Ohio Constitution provides that
“[t]here shall be a court of common pleas and such divisions thereof as may be
established by law serving each county of the state,” and Article IV, Section 4(B)
provides that “[t]he courts of common pleas and divisions thereof shall have such
original jurisdiction over all justiciable matters * * * as may be provided by law.”
“[W]e have interpreted Article IV’s mandate that the courts of common pleas have
jurisdiction ‘as may be provided by law’ to mean that ‘[t]he general subject matter
jurisdiction of Ohio courts of common pleas is defined entirely by statute.’ ”
(Emphasis added in Ohio High School Athletic Assn.) Ohio High School Athletic
Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845, 136 N.E.3d 436, ¶ 7,
quoting State v. Wilson, 73 Ohio St.3d 40, 42, 652 N.E.2d 196 (1995).
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{¶ 22} The General Assembly exercised its power to define the subject-
matter jurisdiction of the common pleas courts in enacting R.C. Chapter 2721, the
Declaratory Judgment Act. Subject to a statutory limitation that is not at issue here,
“courts of record may declare rights, status, and other legal relations,” R.C.
2721.02(A), and
any person whose rights, status, or other legal relations are affected
by a constitutional provision, statute, rule as defined in section
119.01 of the Revised Code, municipal ordinance, township
resolution, contract, or franchise may have determined any question
of construction or validity arising under the instrument,
constitutional provision, statute, rule, ordinance, resolution,
contract, or franchise and obtain a declaration of rights, status, or
other legal relations under it.
R.C. 2721.03.
{¶ 23} The court of common pleas therefore has subject-matter jurisdiction
over this declaratory-judgment action attacking the constitutionality of a municipal
ordinance. It is the proper forum to proceed to judgment.
Service of Notice on the Attorney General
{¶ 24} At issue here is R.C. 2721.12(A), which provides:
In any action or proceeding that involves the validity of a
municipal ordinance or franchise, the municipal corporation shall be
made a party and shall be heard, and, if any statute or the ordinance
or franchise is alleged to be unconstitutional, the attorney general
also shall be served with a copy of the complaint in the action or
proceeding and shall be heard.
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(Emphasis added.)
{¶ 25} Construing this statute in Cicco, this court held that “[a] party who
is challenging the constitutionality of a statute must assert the claim in the
complaint (or other initial pleading) or an amendment thereto, and must serve the
pleading upon the Attorney General in accordance with methods set forth in Civ.R.
4.1 in order to vest a trial court with jurisdiction under former R.C. 2721.12.” 89
Ohio St.3d 95, 728 N.E.2d 1066, at syllabus. This court further stated that “[a]
court lacks jurisdiction to render declaratory relief if the requirements in R.C.
2721.12 are not met.” Id. at 100.
{¶ 26} Since then, this court has said that “failure to serve the attorney
general when filing a declaratory-judgment action under R.C. 2721.12 ‘is a
jurisdictional defect.’ ” Spencer v. Freight Handlers, Inc., 131 Ohio St.3d 316,
2012-Ohio-880, 964 N.E.2d 1030, ¶ 19, quoting Asbury Apts. v. Dayton Bd. of
Zoning Appeals, 77 Ohio St.3d 1229, 673 N.E.2d 1379 (1997). And more recently
in Toledo v. State, we indicated that “[c]ompliance with R.C. 2721.12(A) is
required to invoke the trial court’s jurisdiction over a constitutional challenge.” 154
Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 18.
{¶ 27} In none of these cases did we say that the failure to comply with R.C.
2721.12(A) deprives the trial court of subject-matter jurisdiction. Nothing in the
statutory text expressly states that service on the attorney general is a prerequisite
to conferring subject-matter jurisdiction, speaks in jurisdictional terms, or
addresses the power of the court to issue a binding judgment. Rather, as we
explained in Kuchta, “an inquiry into a party’s ability to invoke a court’s
jurisdiction speaks to jurisdiction over a particular case, not subject-matter
jurisdiction.” (First emphasis added, second emphasis sic.) 141 Ohio St.3d 75,
2014-Ohio-4275, 21 N.E.3d 1040, at ¶ 22. Whether a party has served the attorney
general does not change the fact that the common pleas court is the proper forum
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for an action seeking a declaration that an ordinance is unconstitutional, because it
relates only to “the rights of the individual parties involved in a particular case,” id.
at ¶ 19.
{¶ 28} Therefore, a party’s failure to comply with R.C. 2721.12(A) and
timely serve notice on the attorney general of a constitutional challenge to a statute
or ordinance does not deprive the court of subject-matter jurisdiction over a
declaratory-judgment action. Rather, the court may not properly exercise that
jurisdiction and render declaratory relief if the requirements in R.C. 2721.12 are
not met.
Harmless Error
{¶ 29} Although it does not affect the court’s subject-matter jurisdiction,
service on the attorney general is a statutory mandate, and proceeding on a
declaratory-judgment action in violation of R.C. 2721.12(A) is error. See generally
Cicco, 89 Ohio St.3d at 100, 728 N.E.2d 1066. In this case, Fourth National Realty
did not serve its constitutional claim on the attorney general at the inception of its
case. And throughout this litigation—through pleadings, discovery, summary-
judgment proceedings, and an initial direct appeal—no one raised an issue with the
failure to serve the attorney general until Cincinnati asserted it in January 2018 as
support for its second motion for summary judgment. Fourth National then served
notice on the attorney general, who elected not to participate in the litigation.
{¶ 30} It is manifest that no one—Fourth National, the city, or the state—
has been prejudiced by the delay in serving notice on the attorney general. Civ.R.
61 provides that “[t]he court at every stage of the proceeding must disregard any
error or defect in the proceeding which does not affect the substantial rights of the
parties.” The failure to timely serve the attorney general is an error, but it had no
impact on the outcome of the proceeding and was therefore harmless error.
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Conclusion
{¶ 31} As the Supreme Court of the United States has explained, “Clarity
would be facilitated if courts and litigants used the label ‘jurisdictional’ not for
claim-processing rules [i.e., those guiding the court’s exercise of jurisdiction], but
only for prescriptions delineating the classes of cases (subject-matter jurisdiction)
and the persons (personal jurisdiction) falling within a court’s adjudicatory
authority.” Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867(2004).
{¶ 32} Because R.C. 2721.12(A) does not limit the subject-matter
jurisdiction of the trial court and because the failure to serve timely notice on the
attorney general in this case was harmless error, I concur in judgment only and
agree that the judgment of the court of appeals should be affirmed.
_________________
PIPER, J., concurring in judgment only.
{¶ 33} Our various opinions in this case establish that the Ohio General
Assembly needs to clearly set forth the law on when the Ohio Attorney General
must be served in a declaratory-judgment action that challenges the
constitutionality of an ordinance.
{¶ 34} I agree with all the other opinions to the extent that they expressly or
implicitly indicate that neither R.C. 2721.12(A) nor Cicco v. Stockmaster, 89 Ohio
St. 3d 95, 99, 728 N.E.2d 1066 (2000), establishes an exact timeframe for when
service of the complaint must be perfected upon the attorney general. However, I
disagree with the majority’s willingness to effectively state that it is never too late
to raise the constitutional argument and serve the attorney general. Just as the
concurring opinion and the dissent suggest, the rule created by the majority today
can lead to protracted litigation, judicial inefficiency, and strategic tactics seeking
several bites at the apple.
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{¶ 35} The dissent rightly points out that caselaw construing R.C. 2721.12
recognizes a temporal prerequisite for a trial court to have authority to consider
matters related to a constitutional challenge of a city ordinance. The language of
the statute is mandatory; the attorney general shall be served the complaint and
shall be heard.1
{¶ 36} According to the Cicco court, proper timing of the notice is “the
beginning of the action or the initial pleading stage in which the constitutional
challenge is raised.” Id. at 99. The court supported its conclusion by reasoning that
service “at the inception of the action, or when a constitutional challenge is initially
pleaded” would allow the attorney general “a reasonable amount of time in which
to evaluate the issues and determine whether to participate in the case.” Id. The
dissent’s point in the present case is well-taken; a temporal requirement already
exists. The difficulty is that the requirement remains undefined.
{¶ 37} The other aspect lending credibility to the temporal requirement
inherent in R.C. 2721.12(A) is the General Assembly’s use of the word “also” when
requiring that the attorney general “also” be served a copy of the complaint along
with the municipal corporation being made a party. Requiring service “also” upon
the attorney general, meaning “in addition to,” creates a temporal element within
the legislative framework that requires service upon the attorney general in
proximity to the municipal corporation being made a party. The language used in
the statute and analyzed by this court in Cicco does not support an unending
window of time for service upon the attorney general.
1. The Cicco court addressed the former version of R.C. 2721.12, before it was amended in 1999.
The former version required that the attorney general be served “a copy of the proceeding and shall
be heard.” (Emphasis added.) Sub.H.B. No. 77, 144 Ohio Laws, Part II, 2902, 2930. The General
Assembly amended the statute to now require service of the complaint. The Cicco court noted that
requiring service of the complaint is more specific than requiring notice of the proceeding and that
the amendment reinforces that service should occur at the inception of the case when a complaint,
the initial pleading, is traditionally filed.
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{¶ 38} As the concurring opinion correctly points out, not acknowledging a
temporal element of the statute opens Pandora’s box and creates multiple issues
that impact a litigation’s progression, adjudication, and termination. The General
Assembly should provide for the administration of law timely and with certainty.
An unlimited window of time in which to raise a constitutional issue and serve the
attorney general is not expressed within R.C. 2721.12(A) and is problematic.
{¶ 39} The General Assembly has provided no guidance within the statute
to assist trial courts and practitioners in understanding the parameters of the
temporal requirement. Thus, the General Assembly should act to clearly define
applicable timeframes or otherwise clearly announce the legislation’s intent so that
we are not left to wallow in the consequences of the ambiguity that has been created.
The dissent’s point is also well-taken in that if Cicco’s holding was inconsistent
with legislative intent, the General Assembly could have amended the statute within
the last 20 years. I fear, however, that it may have been a quagmire into which the
legislature dared not step.2
{¶ 40} I agree with the majority that a trial court does not lose subject-
matter jurisdiction when a party fails to initially serve the attorney general and that
precedent exists indicating that such a defect may be subsequently cured. However,
I do not agree that the window of time within which the failure can be rectified is
ad infinitum. Thus, I respectfully concur in judgment in only.
_________________
DONNELLY, J., concurring.
{¶ 41} I concur. I write separately to stress that R.C. 2721.12(A)’s lack of
a temporal requirement can lead to problematic circumstances—as in this case, in
2. As an illustration of the possibilities, the statute that governs petitions for postconviction relief
sets forth a one-year time limit in which a petition must be filed. R.C. 2953.21. Otherwise, an
untimely petition may be considered only if the petitioner is able to prove that one of two sets of
qualifications applies that excuses its untimeliness. See R.C. 2953.23.
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which the Ohio Attorney General was not served until more than two years after
the constitutional challenge was initiated.
{¶ 42} In Cicco v. Stockmaster, 89 Ohio St.3d 95, 99, 728 N.E.2d 1066(2000), this court, in construing R.C. 2721.12, concluded that the General
Assembly had required that “the Attorney General be served at the inception of the
action, or when a constitutional challenge is initially pleaded * * *.” This
conclusion is logical but is not compelled by the statute. We reasoned that the
requirement is necessary to give the attorney general “time to prepare a response to
the complaint, make an appearance, and be involved throughout the rest of the
case.” Id.{¶ 43} Common sense suggests that a party asserting a constitutional claim
pursuant to R.C. 2721.12(A) should take the steps required by the statute to assert
that claim—including serving the attorney general—early in the legal process. To
that end, the General Assembly should amend R.C. 2721.12(A) to provide a
temporal requirement to clarify this issue for the bench and bar—whether that
requirement is at the inception of the constitutional challenge, within a reasonable
time afterward, or some other standard.
_________________
KLATT, J., dissenting.
{¶ 44} Because I would follow the rationale expressed in Cicco v.
Stockmaster, 89 Ohio St. 3d 95, 99, 728 N.E.2d 1066 (2000), I respectfully dissent.
In Cicco, this court, in construing R.C. 2721.12, concluded that the General
Assembly had required that “the Attorney General be served at the inception of the
action, or when a constitutional challenge is initially pleaded * * *.” Id. That
conclusion makes sense because it allows the attorney general “time to prepare a
response to the complaint, make an appearance, and be involved throughout the rest
of the case.” Id. Moreover, requiring service on the attorney general at the
inception of the action or when a constitutional challenge is initially pleaded is a
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January Term, 2020
clear rule that is fair to the parties and consistent with judicial economy. As the
facts in this case illustrate, had the attorney general decided to be heard in this case
on the constitutional issue, more than two years of discovery and motion practice
would have already taken place. If this court’s interpretation of R.C. 2721.12 in
Cicco, now almost 20 years old, was inconsistent with legislative intent, the General
Assembly would have amended the statute. For these reasons, I respectfully
dissent.
_________________
Paula Boggs Muething, Cincinnati City Solicitor, Marion E. Haynes III,
Chief Counsel, and Mark R. Manning, Assistant City Solicitor, for appellant.
Holzapfel Law, L.L.C., and Eric C. Holzapfel, for appellee.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Stephen P. Carney, Deputy Solicitor General, in support of neither side for amicus
curiae, Ohio Attorney General Dave Yost.
_________________
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